NDC leader Chishimba Kambwili has insisted that he be granted leave to commence judicial review proceedings against magistrate David Simusamba’s refusal to recuse himself from presiding over his forgery case.

He further wants the proceedings in the said forgery case before the Lusaka Magistrates’ Court stayed, so as not to render the proceedings before Lusaka High Court academic.

Kambwili has argued that he has a serious case worth further investigation at the substantive hearing of the application for judicial review, adding that there are no unexhausted alternative remedies.

In this matter, Kambwili has applied for leave to commence judicial review proceedings in the Lusaka High Court against magistrate Simusamba’s refusal to recuse himself from presiding over a case where he is charged with forgery, uttering a false document and giving false information to a public officer.

Kambwili who has cited the Attorney General as respondent and ex-parte the principle resident magistrate, Simusamba, stated that it had been difficult for his lawyers to perform their duties effectively as the courtroom was always poisoned with outbursts of anger and threats from the presiding magistrate towards him and his lawyers.

He now wants a declaration that the decision of the presiding magistrate to refuse to recuse himself from presiding over the said case before him, is unlawful and irrational.

But Judiciary Chief Registrar and director of court operations Charles Kafunda argued that Kambwili’s application for leave to commence judicial review proceedings against magistrate Simusamba, was not an appropriate matter for the High Court to exercise any of its discretion and jurisdiction to grant him leave.

Kafunda submitted that this was because Kambwili had not exhausted all the alternative and administrative remedies.

However, in his arguments in reply, Kambwili stated that in view of Article 128 of the Constitution, it was illegal for magistrate Simusamba to hold that no constitutional issue had arisen because that was outside the jurisdiction of the court.

“If the presiding magistrate was genuinely unconvinced that a constitutional issue had arisen under Article 28 (2), he should have referred the matter to the constitutional court for such determination pursuant to Article 128 (2). Under this provision, he has no discretion whatsoever and he does not need to wait for the parties to make such a request, he stated.

Kambwili stated that the application that was made asking magistrate Simusamba to refer the matter to the High Court for constitutional determination was well founded, raised very serious and important legal issues, and could not by any stretch of the imagination be thought to be frivolous and vexatious.

“It therefore follows that the presiding magistrate had no discretion to dismiss it and the decision to reject and label the application as frivolous and vexatious was irrational and unreasonable and ought to be reviewed by this Honourable court,” he stated.

Kambwili prayed that the High Court grants him leave to commence judicial review proceedings and stays the proceedings before the Lusaka Magistrates’ Court so as not to render the proceedings before the High Court academic.

“In the instant matter, there is a real infringement and danger of continued infringement of Kambwili’s constitutional rights owing to the relation between Kambwili and the presiding magistrate, and this infringement will continue for as long as the presiding magistrate continues to preside over the matter,” stated Kambwili.